United States District Court, W.D. Pennsylvania
August 1, 2005.
MICHAEL KOSSLER, Plaintiff,
STEVEN CRISANTI and DONZI'S BAR, Defendants.
The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court for disposition are the following:
MOTION FOR SUMMARY JUDGMENT (Document No. 19)
filed by defendant Donzi's Bar, with brief in support
(Document No. 20) ("Motion" and "Brief,"
PLAINTIFF'S REPLY TO THE DEFENDANT, DONZI'S BAR'S
MOTION FOR SUMMARY JUDGMENT (Document No. 25)
PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT
DONZI'S MOTION FOR SUMMARY JUDGMENT (Document No.
26) ("Plaintiff's Brief").
After considering the filings of the parties, the evidence of
record and the relevant statutory and case law, the Motion for
Summary Judgment will be granted in part and denied in part.
This civil rights action arises out of events which occurred in
the early morning hours of November 11, 2001. Plaintiff Michael
Kossler ("Kossler") and his friend John Trelecki ("Trelecki")
arrived at defendant Donzi's Bar ("Donzi's") at approximately
11:00 p.m. and "socialized, talked, walked around a little bit,
maybe danced a little bit, [and] had a couple of beers . . ."
Kossler depo. at 13. Defendant Steven Crisanti ("Crisanti"), a
City of Pittsburgh Police Officer, was working an "off-duty" detail, or secondary
employment position, at Donzi's. Crisanti depo. at 26, 30. With
the exception of his official police baseball cap, Crisanti was
dressed in his full police uniform. Id. at 85.
Kossler and Trelecki left Donzi's at approximately 2:00 a.m.
because Donzi's personnel "were asking anybody (sic) to leave."
Kossler depo. at 13.*fn2 Upon exiting the bar, they walked
up a ramp toward a parking lot. Id. at 14. Specifically,
Kossler testified at his deposition that he and Trelecki were "at
the top of the ramp where it turns into a sidewalk and there is a
little landing area . . . you take two or three steps down, you
are in the parking lot . . ." Kossler depo. at 17.
Kossler and Trelecki were not yet in the parking lot when a
fight broke out on the sidewalk at the top of the ramp. Id. at
17. When the fight started, Crisanti was standing on what he
describes as an "island" in the parking lot located next to the
entrance to Donzi's. Crisanti depo. at 80. What happened next is
in dispute. Crisanti's version of the events is as follows:
There was, apparently, a fight at the top of the
steps going down towards Donzi's. I ran over to break
up the fight, and someone grabbed me from behind,
twisted me around. That was Mr. Kossler. I looked him
right square in the eye. I observed what he was
wearing. I pushed him off me. I ran over to the
Pltf's appx., ex. 3, p. 3.*fn3
According to Crisanti, the
fight was broken up by Donzi's security personnel before he could
reach the fight. Id. at 8-9.
Trelecki, on the other hand, told a different story at his
[Crisanti] got in the middle of trying to got in
the middle of a couple of kids that were throwing
punches and pushing each other, and it was just
getting hectic because all the kids were starting to
surround now, and it wasn't a one-on-one battle, it
started to turn into more and more kids, escalating,
getting involved in this.
I went over and smacked Officer Crisanti, tapped him
on his back to tell him I was helping him out, trying
to break up the kids so he didn't think he was by
himself because I know him, he was a good
Trelecki depo. at 19. Kossler maintains that he was not the one
who touched Crisanti when Crisanti was running toward or attempting to break up the fight.
Kossler depo. at 20-21, 27-28.
What happened after the fight ended is also in dispute.
According to Kossler:
Officer Crisanti approached us, you know, in a loud,
screaming, irate voice, pointing his finger at me
telling me next time I touch him I am going to jail
and I shouldn't be grabbing an Officer.
* * *
Then he continued to kind of force me back where I
was concerned about my face. . . . I thought I was
going to get physically punched or slapped or
something, and I was backing up.
And at one point, I believe he touched my nose. So I
told him, I just had sinus surgery, I just had
surgery on my nose, please, get your hand out of my
* * *
And then Officer Crisanti maced me.
Kossler depo. at 27-28. Kossler also testified that he moved
Crisanti's hand away from his own face just before being sprayed
by Crisanti. Id.
Crisanti's account of what occurred differs significantly from
what Kossler said:
I approached Kossler to ask him and then explain to
him not to ever touch me or another police officer
again, and to find out why he had done such a thing.
He became irate. He came at me. I put my hand up and
pushed him away.
* * *
He bent my middle finger and forefinger completely
back on my left hand.
* * *
I tried to pull my fingers free. I had to reach
underneath, with my right hand, and grab my OC and
spray him. At that time he released my hand.
Motion, ex. I, p. 2. Kossler was arrested and charged with
aggravated assault and public intoxication. Complaint at ¶ 11. In
a non-jury trial before the Honorable Robert E. Colville, Kossler
was found not guilty of aggravated assault and public
intoxication, but was found guilty of the summary offense of
disorderly conduct and fined one hundred dollars. Crisanti's
Answer at ¶ 13; Motion, ex. C, p. 4-6. Judge Colville also opined
on the record that Crisanti "acted reasonable." Motion, ex. C, p.
With respect to Donzi's motion, the primary dispute involves
the parameters of "secondary employment" by City of Pittsburgh
Police Officers. Essentially, the issue is whether Crisanti was,
at the time of the incident, acting as an employee/agent of
Donzi's, as a City of Pittsburgh Police Officer, or, perhaps, in
both capacities. At the time of the incident, "secondary
employment" by City of Pittsburgh Police Officers was governed by
Pittsburgh Bureau of Police Order Number 29-1 ("the Order").
Pltf's appx., ex. 7, p. 1; Crisanti depo. at 182-83. "It is the policy of the Pittsburgh Bureau of Police to permit members to
engage in secondary employment, whether compensated or
uncompensated, within the guidelines set forth in [the Order]"
Pltf's appx., ex. 7, p. 1. "Secondary employment" is defined as
"[a]ny employment that is conditioned on the actual or potential
use of law enforcement powers by the police officer employee."
Id. City of Pittsburgh Police Officers, "while engaged in
secondary employment, will conduct themselves as though they were
on duty, and will be subject to all departmental rules,
regulations, policies and procedures set forth by the Pittsburgh
Bureau of Police while engaged in a secondary employment
capacity." Id. Approval for secondary employment must be
obtained by individual officers from the Pittsburgh Bureau of
Police and is contingent upon the officer's "good standing" with
the Pittsburgh Bureau of Police, as well as other qualifications
not germane to this action. See id. at 1-2.
The Order also provides that "[a]ll members engaged in
secondary . . . employment must recognize that their primary
duty, obligation and responsibility is to the Pittsburgh Bureau
of Police," and that "[m]embers are subject to call at all times
for emergencies, special assignments or extra duty, and no
secondary or outside employment may infringe on these
obligations." Id. at 2. At his deposition, Crisanti testified
that his interpretation of his duties pursuant to the Order was
that "if someone is committing a crime, and I see it, or someone
requires police response, I have to respond. I have to act in a
manner as a police officer." Crisanti depo. at 183. Crisanti
responded affirmatively when asked whether he would "be
responding on behalf of the City of Pittsburgh Police
Department," and he added that "if I [were] working a detail and
there is a shooting up the street in another bar and they see
(sic) officers need assistance, I got to go." Id. at 183-84.
The parties dispute the scope and legal ramifications of
Crisanti's duties during "secondary employment" at Donzi's.
Crisanti testified at his deposition that he understood his
duties for Donzi's to be as follows:
Q: Tell me what duties you understand you were to be
performing for Donzi's.
A: My duties are as a for crowd control, a visible
deterrant (sic), and, if need be, if someone does
do something that would force me to have to arrest
them, then so be it. I mean, I have to do that. Q: Okay.
A: But the primary function is security and crowd
* * *
Q: As part of those duties, was it explained to you
that they wanted you to stand near the entrance of
Donzi's as people are coming into Donzi's?
A: Yes. And that is, A, for the visible deterrant
(sic), but also is, the purpose is to serve so
people know where we are at.
On many occasions . . . our function is not just for
. . . law enforcement, it is I have administered
first aid on several occasions down there for people
who had been falling off things and cracking their
skull . . ."
Crisanti depo. at 188-89.
After his state court charges were resolved, Kossler filed the
instant lawsuit against Crisanti and Donzi's in which he brings
claims for excessive force, false arrest and malicious
prosecution pursuant to 42 U.S.C. § 1983 and the Fourth
Amendment. Complaint at ¶ 1; Reply at ¶ 1. The Complaint also
states common law claims for assault and battery, false arrest
and malicious prosecution. Additionally, paragraph fourteen of
the Complaint appears to state a claim against Donzi's for
failure to train. Some of the language in Donzi's Reply
indicates, by omission, that no claim for failure to train is
being advanced, but the Counterstatement of Facts set forth in
Donzi's Reply includes facts which are clearly relevant to a
claim for failure to train. Accordingly, the Court will assume
that a claim against Donzi's for failure to train is at issue in
this case.*fn5 Donzi's has advanced multiple arguments in
support of its motion for summary judgment.
Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure reads, in
pertinent part, as follows:
[Summary Judgment] shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled
to judgment as a matter of law.
In interpreting Rule 56(c), the United States Supreme Court has
The plain language . . . mandates entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be "no
genuine issue as to material fact," since a complete
failure of proof concerning an essential element of
the non-moving party's case necessarily renders all
other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317
, 322-23 (1986).
An issue of material fact is genuine only if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The court must view the facts in a light most
favorable to the non-moving party, and the burden of establishing
that no genuine issue of material fact exists rests with the
movant. Celotex, 477 U.S. at 323. The "existence of disputed
issues of material fact should be ascertained by resolving all
inferences, doubts and issues of credibility against the moving
party." Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d
Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co.,
464 F.2d 870, 874 (3d Cir. 1972)). Final credibility determinations
on material issues cannot be made in the context of a motion for
summary judgment, nor can the district court weigh the evidence.
Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir.
1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware
Co., 998 F.2d 1224 (3d Cir. 1993).
When the non-moving party will bear the burden of proof at
trial, the moving party's burden can be "discharged by `showing'
that is, pointing out to the District Court that there is an
absence of evidence to support the non-moving party's case."
Celotex, 477 U.S. at 325. If the moving party has carried this
burden, the burden shifts to the non-moving party who cannot rest
on the allegations of the pleadings and must "do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets,
998 F.2d at 1230. When the non-moving party's evidence in opposition to a
properly supported motion for summary judgment is "merely
colorable" or "not significantly probative," the court may grant
summary judgment. Anderson, 477 U.S. at 249-50. However, a
party which opposes summary judgment must do more than rest upon
mere allegations, suspicions, general denials, and vague
A. Whether "Fundamental Agency Law" Precludes Donzi's
Donzi's contends that "[a]t the time of the spraying, arresting
and prosecution, Officer Steven Crisanti was acting as a City of
Pittsburgh police officer and not as an employee of Donzi's or on
Donzi's behalf." Brief at 1. However, despite the fact that
Donzi's was closed to the public at the time of the
confrontation, and despite the fact that the confrontation did
not occur on Donzi's property, there is ample evidence of record
from which a reasonable fact finder could find that when Crisanti
confronted Kossler he was acting on behalf of, or as an agent of
Donzi's. See Crisanti dep. at 79-81; Manning depo. at 23-27,
40, 68. Therefore, whether Crisanti had completed his duties for
Donzi's and was no longer acting on its behalf when he confronted
Kossler is a genuine issue of material fact which must be
determined by a fact finder.
B. Whether Donzi's Was a State Actor
Donzi's contends that it "is not a state actor for the
implication (sic) of section 1983." Brief at 9. Regardless of
the underlying substantive right at issue, Kossler must
demonstrate state action by Donzi's in order to establish its
liability under section 1983. 42 U.S.C. § 1983. Otherwise,
injuries allegedly inflicted by Donzi's could not be said to have
occurred "under color of state law." Id. See also, e.g., Abbott
v. Latshaw, 164 F.3d 141, 145 (3d Cir. 1998). In fact, "state
action is a threshold issue in any section 1983 case."
Boneberger v. Plymouth Township, 132 F.3d 20, 23 (3d Cir.
1997); Braden v. Univ. of Pittsburgh, 552 F.2d 948, 955 (3d
On its face Donzi's is a private entity, and is not a state
actor. However, the actions of a private party may constitute
state action under section 1983 where those actions may be
"fairly attributable to the state." Lugar v. Edmondson Oil Co.,
457 U.S. 922, 947 (1982). The Court's independent research has
revealed no cases from the Third Circuit which speak directly to
the basic facts of this case, i.e., when a uniformed police
officer is working an off-duty security detail for a private
entity. However, well-reasoned opinions from other courts of
appeals lead this Court to find and rule that Donzi's employment
of Crisanti may amount to state action by Donzi's. See Chapman
v. Higbee Company, 319 F.3d 825, 834-35 (6th Cir. 2003), cert.
denied, 124 S. Ct. 2902 (2004) (genuine issue of fact as to state action
by store under "symbiotic" or "nexus" test existed where "the
Dillard's security officer who stopped and searched [Plaintiff]
was an off-duty sheriff's deputy, wearing his official sheriff's
department uniform, badge, and sidearm," and "was obligated to
obey Dillard's policies and regulations while on-duty at the
store."); Pickrel v. City of Springfield, 45 F.3d 1115, 1118
(7th Cir. 1995) (off-duty officer "could have been acting under
color of state law" where he "was wearing his police uniform and
displaying his badge, both signs of state authority" and "was
wearing his gun, enabling him to enforce his authority."). As
stated above, there is a genuine issue of material fact as to
whether Crisanti had completed his duties for Donzi's and was
acting as a City of Pittsburgh Police Officer when the
confrontation with Kossler occurred, or whether he was still
acting within the scope of his duties for Donzi's. Therefore, at
this juncture the asserted lack of state action by Donzi's is not
a valid basis upon which to grant summary judgment on Plaintiff's
section 1983 claims.
C. Whether Kossler can Maintain These Claims Despite His
Donzi's contends that Kossler "is precluded from relitigating
the finding that the police officer acted reasonable (sic) and
Michael Kossler was guilty of disorderly conduct for the
incident." Brief at 7. It is well-established that "the doctrines
of res judicata and collateral estoppel have a place in section
1983 litigation." Switlik v. Hardwicke Co., Inc., 651 F.2d 852,
858 (3d Cir. 1981). The guiding principle is that "an action
under section 1983 [cannot] be maintained on the basis of events
leading to a conviction which has not been reversed or impaired
by other official proceedings if a judgment in favor of the
plaintiff in the civil case would imply that the conviction was
invalid." Nelson v. Jashurek, 109 F.3d 142, 144 (3d Cir. 1997)
(citing Heck v. Humphrey, 512 U.S. 477, 485-87 (1994)).
With respect to whether Kossler's conviction for the summary
offense of disorderly conduct is entitled to preclusive effect,
the Court finds and rules that Kossler may not maintain his
section 1983 and state law claims for malicious prosecution and
false arrest due to the preclusive effect of his conviction, but
Kossler may maintain his section 1983 claim for excessive force despite his conviction. A judgment in favor of
Kossler on his section 1983 and state law malicious prosecution
and false arrest claims would imply that he was
unconstitutionally arrested and was not guilty of the offenses
charged, when in fact Kossler was found guilty of disorderly
conduct.*fn6 However, a judgment in favor of Kossler on his
section 1983 claim for excessive force would not necessarily
imply that Kossler's conviction for disorderly conduct is
invalid. Kossler could have been arrested with excessive force,
but could nevertheless be guilty of disorderly conduct.
Therefore, Kossler's section 1983 claim for excessive force is
not barred by his conviction.
With respect to Judge Colville's remark that Crisanti's actions
were reasonable, Donzi's has not cited, and the Court has not
found, legal authority for the proposition that the remark should
be given preclusive effect.*fn7 Of course, whether Judge
Colville thought that Crisanti's actions were reasonable is not
directly relevant to whether Kossler was guilty of disorderly
conduct, and Judge Colville did not need to make such an
observation to find Kossler guilty. Therefore, the Court finds
and rules that Judge Colville's comment does not bar any of the
claims asserted in the instant action.
The only meritorious argument raised by Donzi's is its
contention that Kossler's malicious prosecution claim(s) are
barred because "the criminal action was not terminated favorably
to the plaintiff." Brief at 8. Under Pennsylvania law, an action
for malicious prosecution requires that the plaintiff show, inter alia, that
the criminal proceeding ended in plaintiff's favor. Merkle v.
Upper Dublin School Dist., 211 F.3d 782, 791 (3d Cir. 2000). The
criminal proceeding did not end in favor of Kossler, but instead
ended in his conviction for disorderly conduct. Therefore, his
claim for malicious prosecution under Pennsylvania law must fail,
and the Court will enter summary judgment in favor of Donzi's on
said claim. As to Kossler's section 1983 claim for malicious
prosecution, the Supreme Court has observed that "[o]ne element
that must be alleged and proved in a malicious prosecution action
is the termination of the prior criminal proceeding in favor of
the accused." Heck v. Humphrey, 512 U.S. 477, 484 (1994). See
also Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000) (a § 1983
malicious prosecution plaintiff "must be innocent of the crime
charged in the underlying prosecution."). Like Kossler's state
law claim for malicious prosecution, his federal claim must fail
because the prior criminal proceeding was not terminated in his
favor. Therefore, the Court will grant summary judgment in favor
of Donzi's on Plaintiff's section 1983 claim for malicious
D. Donzi's Argument That "Section 1983 Does Not Supplant
Traditional Tort Law"
Donzi's argument that "[s]ection 1983 was not intended or meant
to implicate a defendant for negligent acts," and that "section
1983 was not meant to supplant traditional tort law" is an
accurate statement of the law, but is nevertheless without merit.
See Brief at 8-10. Kossler's constitutional and common law
claims seek to redress alleged deprivations of his civil rights;
no cause of action for ordinary negligence, which is not
cognizable under section 1983 due to the lack of a federal
constitutional or statutory violation, has been pled in Kossler's
Complaint. See Daniels v. Williams, 474 U.S. 327, 332 (1986)
("Our Constitution deals with the large concerns of the governors
and the governed, but it does not purport to supplant traditional
tort law in laying down rules of conduct to regulate liability
for injuries that attend living together in society."). E. Donzi's Argument Regarding Supervisory Liability
Donzi's argument regarding supervisor liability invokes the
general rule that there is no respondeat superior liability
under section 1983, see Monell v. Dept. of Soc. Servs., New York
City, 436 U.S. 658, 694-95 (1978), as well as the rule that "the
inadequacy of police training may serve as the basis for § 1983
liability . . . where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
into contact." City of Canton v. Harris, 489 U.S. 378, 388
(1989). As the Court of Appeals for the Third Circuit noted
recently, "[t]his typically requires proof of a pattern of
underlying constitutional violations." Carswell v. Borough of
Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (citing Berg v.
County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)).
Furthermore, "[a]lthough it is possible, proving deliberate
indifference in the absence of such a pattern is a difficult
task." Carswell, 381 F.3d at 244.
The Court finds and rules that there is not sufficient evidence
for a reasonable fact finder to conclude that Donzi's was
deliberately indifferent to the constitutional rights of those
with whom its security personnel, including off-duty police
officers like Crisanti, came into contact. First, there is no
evidence from which a reasonable fact finder could find a pattern
of constitutional violations. There is evidence in the record
that in the eight years preceding the altercation between Kossler
and Crisanti there have been three altercations at Donzi's. See
Pltf's exhibits 6 (Complaint filed against Donzi's for actions of
security personnel in or around 1999), 18 (Complaint filed
against Donzi's for alleged assault by off-duty police officer in
1997), 19 (Complaint filed against Donzi's for actions of
security personnel and off-duty police officer in or around
1994). However, there is no evidence of record which establishes
a causal link between these isolated incidents and any official
or unofficial policy of Donzi's. Moreover, the evidence of record
does not demonstrate with any degree of reliability that any
constitutional violations or physical abuse by Donzi's security
personnel ever occurred.*fn8 Finally, the uncontradicted testimony of Michael Manning, the Manager of
Donzi's, establishes that its security personnel are trained by a
security expert to follow a "hands-off" security policy. Manning
depo. at 75. Accordingly, the Court will grant summary judgment
on Kossler's claim for failure to train.*fn9
F. Whether Crisanti is Entitled to Qualified Immunity
Donzi's contends that Crisanti (and therefore Donzi's) is
entitled to qualified immunity because "plaintiff has not
introduced any evidence that a reasonable police officer would
have acted any differently than Officer Crisanti when his hand
was knocked away . . ." Brief at 14. In Wright v. City of
Philadelphia, No. 03-1633 (3d Cir. June 6, 2005), the United
States Court of Appeals for the Third Circuit provided the
following discussion of section 1983 claims and the privilege of
Section 1983 provides a cause of action against any
person who, acting under color of state law, deprives
another of his or her federal rights. When an
officer's actions give rise to a § 1983 claim, the
privilege of qualified immunity, in certain
circumstances, can serve as a shield from suit. The
primary purpose of affording public officials the
privilege of qualified immunity, thus insulating them
from suit, is to protect them from undue interference
with their duties and from potentially disabling
threats of liability. The privilege of qualified
immunity, however, can be overcome when state
officials violate clearly established statutory or
constitutional rights of which a reasonable person
would have known.
Wright, slip op. at 12 (citations and quotations omitted). The
analysis for determining whether qualified immunity applies was
explained by the United States Supreme Court in Saucier v.
Katz, 533 U.S. 194
A court required to rule upon the qualified immunity
issue must consider, then, this threshold question:
Taken in the light most favorable to the party
asserting the injury, do the facts alleged show the
officer's conduct violated a constitutional right?
This must be the initial inquiry. . . . If no
constitutional right would have been violated were the allegations established, there
is no necessity for further inquiries concerning
qualified immunity. On the other hand, if a violation
could be made out on a favorable view of the parties'
submissions, the next, sequential step is to ask
whether the right was clearly established.
Saucier, 533 U.S. at 201. Over a well-reasoned dissent by Judge
Smith, in Wright the Third Circuit interpreted Saucier and
the Supreme Court's subsequent opinion in Brosseau v. Haugen,
___, ___ U.S. ___, 125 S. Ct. 596
(2004) to establish "a two-step
qualified immunity inquiry, with the first step being the
`constitutional issue' and the second step being `whether the
right was clearly established.'" Wright, slip op. at 16.
Finally, in the Third Circuit "qualified immunity is an objective
question to be decided by the Court as a matter of law."
Carswell, 381 F.3d at 242 (citing Doe v. Groody,
361 F.3d 232
, 238 (3d Cir. 2004)).
At the first step of the analysis, a reasonable fact finder,
viewing the facts in the light most favorable to Kossler, could
find that he was subjected to excessive force, in violation of
the Fourth Amendment, if, in fact, Crisanti sprayed Kossler with
pepper spray when Kossler brushed away Crisanti's hand. At the
second step of the analysis, there is no doubt that the right to
be free from unreasonable searches and seizures (i.e.,
excessive force during an otherwise lawful arrest) is a clearly
established right. See Saucier, 533 U.S. at 201; Wright, slip
op. at 16. However, "[o]nce these requirements are found to have
been satisfied, the inquiry proceeds to another, closely related
issue, that is, whether the officer made a reasonable mistake as
to what the law requires." Carswell, 381 F.3d at 242. Our court
of appeals has also reiterated that "[t]he concern of the
immunity inquiry is to acknowledge that reasonable mistakes can
be made as to the legal constraints on particular police conduct
. . . [i]f the officer's mistake as to what the law requires is
reasonable, however, the officer is entitled to the immunity
defense." Id. (quoting Saucier, 533 U.S. at 205).*fn10
In this action, viewing Kossler's allegations in the most
favorable light, a reasonable fact finder could conclude that
Crisanti made an unreasonable mistake as to the appropriate
amount of force necessary when he sprayed Kossler. Therefore, the
Court finds and rules that at this juncture the factual
disputes in this case preclude a judicial determination that Crisanti is entitled to qualified immunity as to the claim
for excessive force.
For the reasons hereinabove stated, Donzi's Motion for Summary
Judgment will be granted in part and denied in part. An
appropriate Order follows. ORDER OF COURT
AND NOW, this 1st day of August, 2005, in accordance with the
foregoing Memorandum Opinion it is hereby ORDERED, ADJUDGED and
DECREED that the Motion for Summary Judgment (Document No. 19)
filed by defendant Donzi's Bar is GRANTED IN PART and DENIED IN
PART. Summary judgment in favor of Donzi's Bar is hereby
GRANTED and ENTERED on Plaintiff's claims for malicious
prosecution and false arrest brought pursuant to 42 U.S.C. § 1983
and Pennsylvania common law. Summary judgment in favor of Donzi's
Bar is also GRANTED and ENTERED on Plaintiff's claim for
failure to train. In all other respects, the Motion for Summary
Judgment is DENIED.